Proposed amendment to the Equality Act 2010

  • Discrimination
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Peninsula Group, HR and Health & Safety Experts

(Last updated )

Following recent cases in both the English and Scottish Courts, such as Fair Play for Women Ltd v UK Statistics Authority (2010) and For Women Scotland Ltd (2022), legitimate questions were raised about the definition on sex under the Equality Act 2010.

As such, the Minister for Women and Equalities, Kemi Badenoch, asked for advice on the definition of the protected characteristic of ‘sex’ in the Equality Act 2010. Section 11 of the Equality Act 2006 allows the Equality and Human Rights Commission (EHRC) to advise the Government on the effectiveness of equality law, which is what was relied upon in this situation.

In April 2023, the EHRC released a report which looked at the effect of changing the protected characteristic of ‘sex’ to ‘biological sex.’ Its findings highlighted that the terms ‘sex’ and ‘gender’ are often used interchangeably, with a common example given that gender pay gap reporting does not, in fact, report on pay by gender as it suggests, but pay by sex.

The EHRC outlined in its report that changing to ‘biological sex’ would provide clarity in eight areas of life. But it would be disadvantageous in some areas including equal pay. As it stands, a trans woman with a gender recognition certificate can bring an equal pay claim by citing a legally male comparator who was paid more. A trans man with a certificate cannot.

If ‘sex’ was ‘biological sex’, a trans man would be allowed to bring a claim against a legally male comparator because his biological sex is female. A trans woman wouldn’t be able to because her biological sex is male. This would not be in line with the intention of equal pay laws.

It remains to be seen whether the government will accept the proposals and what further action is needed but it could have a significant impact on employment practices, including gender pay gap reporting, equal pay claims and indirect discrimination against trans employees.

Discussions surrounding gender identity have become more prominent in recent years, with many expressing support and others challenging opinions. Regardless of an employee’s and employer’s stance on the issue, it’s important that all members of the workforce are reminded to act in a fair and respectful manner.

It may be useful for employers to revisit equal opportunities policies and associated training programmes, to ensure all workers are reminded of the importance of creating an environment that facilitates genuine equality, diversity and inclusion, and sets a zero-tolerance stance against any form of bullying, discrimination and harassment.

Whilst all employees are entitled to their views and opinions, the way they are expressed in the workplace might not always be reasonable or appropriate, and employers are well within their means to ensure this doesn’t happen and take action where it does.

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